Explainer: How do court appeals work and when can a sentence be increased?

Recently, the High Court more than doubled an offender’s sentence from 3.5 years’ imprisonment to eight years and five months.

De Beers Wong Tian Jun posed as an agent for “sugar daddies” and deceived several young women into having sex with him, on the pretence that it was necessary if he was to recommend them to his fictitious clients. He pleaded guilty, was sentenced, and then appealed against his sentence. On appeal, the Chief Justice Sundaresh Menon actually increased his punishment.

Some may wonder how this is possible. The answer is that an appeal is not a risk-free, second bite at the apple. The key question for the court is whether the sentence imposed is legally correct.

UNDERSTANDING THE CRIMINAL JUSTICE PROCESS

In order to understand this case, we have to look at it in context.

An appeal is usually the last step of a criminal proceeding.

The entire criminal justice process generally looks something like this:

1. Beginning — Someone makes a police report and the police commence investigations.

2. Charging — Once investigations have been completed, the public prosecutor, who is the Attorney-General, decides whether or what to charge the accused with based on the evidence gathered by the police. Being charged means the accused is formally accused of committing an offence.

3. Plead guilty/Claim trial — The accused then needs to decide whether he is going to dispute the charge(s) or not.

If he pleads guilty, he admits to the charge without contest. A judge will then convict him.

If he claims trial, the prosecution will have to prove his guilt beyond reasonable doubt before a judge.

If the accused is found guilty after a trial, he will be convicted. If he is found not guilty, he will be acquitted.

4. Sentencing — Once the offender has been convicted, he will then be sentenced. A punishment will be imposed on him in accordance with the law.

The range of possible sentences for an offence is usually prescribed by an Act of Parliament. The exact sentence for a particular case is decided by a judge, after hearing arguments (called submissions) on the appropriate sentence from both the prosecution and the defence.

5. Appeal — Only once the accused has been convicted or acquitted can there be an appeal. The appeal is to a higher court against the decision of a lower court. An appeal from the State Courts goes to the High Court. An appeal from the High Court goes to the Court of Appeal.

WHAT IS AN APPEAL?

In criminal proceedings, both the prosecution and the defence may appeal. The party that starts the appeal is called the appellant, and the other party is the respondent.

A criminal appeal is not a rehearing of the case. It is a request to a higher court to review the lower court’s decision.

The appellate court, the court hearing the appeal, does not go through the same procedure as the lower court. It is usually a more condensed proceeding in which the appellate court is just looking at whether the lower court’s decision is legally defensible.

The appellate court does not try to second guess the lower court and will only intervene where there is a serious need to do so.

An appeal against conviction means that the appellant is asking the appellate court to overturn the findings of the lower court and declare him not guilty.

An appeal against acquittal is the reverse: The appellant is asking the court to overturn a finding of not guilty and convict the accused.

An appeal against sentence means that the appellant is asking the appellate court to alter the punishment imposed in some way, either to increase or decrease it, or to change the nature of the sentence (for example, from imprisonment to a fine).

The court will only do so if the sentence is manifestly inadequate or manifestly excessive, or there were serious legal problems with how the original sentence was arrived at.

Where the accused pleaded guilty, as in Wong’s case, he can appeal only against sentence.

WHAT CAN A COURT DO ON APPEAL?

The powers of the appellate court are set out in the Criminal Procedure Code (CPC).

In an appeal against conviction/acquittal, the appellate court may either overturn the conviction/acquittal, or remit the case to the trial court for a retrial.

In an appeal against sentence, the appellate court may maintain, reduce or enhance the sentence. It may also alter the nature of the sentence.

In deciding whether and how to exercise its powers, the court hears submissions from the appellant and the respondent.

In an appeal against sentence, as in Wong’s case, both parties will usually have a position on what the legally correct sentence is. In some cases there may be a cross-appeal — the respondent may also ask the court to change the sentence in some way.

Even if there is no cross-appeal, the job of the court is to determine what the correct sentence is according to law.

Therefore, if the original sentence is too low, the appellate court can of its own volition increase the sentence even if the respondent has not asked for such an increase.

This was what happened in Wong’s case. This is not common but it does occasionally happen.

HOW DOES THE COURT KNOW WHAT THE CORRECT SENTENCE IS?

There are four main principles of sentencing law:

1. Retribution — to ensure that the offender is punished appropriately for what he has done.

2. Deterrence — to deter the offender and other potential offenders from committing future offences.

3. Protection — to protect the public from the offender, often by way of incapacitation.

4. Rehabilitation — to reform the offender into a law-abiding member of society.

The court tries to find an appropriate balance between these principles in coming to its decision. The court must also ensure that the sentence is proportionate to the seriousness of the offence.

The court may look to previous similar cases, called precedents, for guidance. Sometimes, there are previous cases in which the courts have set out guidelines — these are known as sentencing benchmarks or frameworks.

In some cases, there is a mandatory sentence that is prescribed by an Act of Parliament. For example, certain drug trafficking offences attract a mandatory death sentence.

The correct sentence is a matter of law. It is not influenced by public opinion or the judge’s personal morality.

IS THERE ANY APPEAL AGAINST THE OUTCOME OF AN APPEAL?

Generally, the decision of a criminal appellate court is final. There has to be some finality in the legal process, cases cannot drag on forever. There are, however, some exceptions.

The President may grant clemency to an offender and have the punishment waived.

Offenders sentenced to death often appeal to the President for clemency. However, this is no longer a judicial matter. The President only grants clemency on the advice of the Cabinet.

Another exception involves a Criminal Reference to the Court of Appeal. This occurs only where there is a question of law of public interest to be resolved. A question of law means that it is a technical legal issue not relating to the facts of a case.

Finally, in 2018, a new procedure for review of appellate decisions was introduced.

This is only applicable where a “miscarriage of justice” has occurred — either that earlier decision is demonstrably wrong or that in coming to it the integrity of the judicial process was compromised.

This procedure has been invoked a number of times since coming into force but it rarely succeeds — the courts have emphasised that the review procedure is not to be lightly invoked and the requirements are stringent.

ABOUT THE AUTHOR:

Alexander Woon is a lecturer at Singapore University of Social Sciences’ School of Law and practises law as Of Counsel at RHTLaw Asia. He was formerly a deputy public prosecutor at the Attorney-General’s Chambers.